The defendant failed to comply with an order to file a pre-trial checklist and listing questionnaire. An unless order was made and the document was filed 2 days late. The defence was therefore automatically struck out and judgment in default ordered. Relief from sanction was then granted to the defendant but this was overturned on appeal. A further appeal was then made to the Court of Appeal.
The Court of Appeal has now unanimously refused relief from sanction. Jackson LJ (the author of the original reforms requiring stricter compliance with the CPR and court orders) delivered the leading judgment. Referring to the test laid down in Denton v TH White (see Weekly Update 26/14), he explained that the breach here was serious. Although no reference should be made to "unrelated failures" (such as earlier breaches of orders unrelated to the unless order), "it is not possible to look at an unless order in isolation". It was added that "The very fact that X has failed to comply with an unless order (as opposed to an 'ordinary' order) is undoubtedly a pointer towards seriousness and significance", although not every breach of an unless order will be serious (eg where an unless order is breached by only a few minutes). Here, although the document was filed only 2 days later than the unless order deadline, the defendant had originally had three months to comply with the original order.
Nor was there a good reason for the delay. The wife of the solicitor conducting the matter had been ill, and illness was given as an example of a good reason in the Mitchell decision (see Weekly Update 43/13). However, that was countered here by the facts that the illness was not sudden and that the solicitor's firm was of a "significant size", with over 40 solicitors, and so appropriate cover should have been arranged (the solicitor had also attended the office and reviewed the file before the unless order was breached).
Finally, Jackson LJ confirmed that he was bound by the majority decision in Denton that, when considering all the circumstances of the case, the two factors set out in CPR r3.9 (that litigation must be conducted efficiently and at proportionate cost and that compliance with rules and orders must be enforced) must be given greater weight than other considerations. Here, the lack of promptness by the defendant in bringing the application for relief was the critical factor, as it had disrupted the progress of the action.